Plaintiff commenced this action against defendant alleging that he was injured while
riding a motor scooter on state highway M-152. Plaintiff alleged that, due to a rapidly
approaching vehicle, he left the standard driving lane and entered the shoulder, which was
?comprised of unusually soft material, not fit for shoulder application.? The area was allegedly
under construction. The scooter slowed abruptly, and plaintiff was injured. Defendant moved
for summary disposition under MCR 2.116(C)(7), based on governmental immunity. The trial
court concluded that plaintiff?s claim was within the highway exception to governmental
immunity, MCL 691.1402, and denied defendant?s motion. Defendant appeals as of right. We
affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
Summary disposition may be granted under MCR 2.116(C)(7) when a claim is barred
because of immunity granted by law. The trial court?s decision regarding the applicability of the
highway exception to governmental immunity is a question of law that we review de novo on
appeal. Mitchell v City of Detroit, 264 Mich App 37, 40-41; 689 NW2d 239 (2004).
Under the highway exception to governmental immunity, ?[t]he duty of the state and the
county road commissions to repair and maintain highways, and the liability for that duty, extends
only to the improved portion of the highway designed for vehicular travel . . . .? MCL
691.1402(1) (emphasis added). Defendant argues that a shoulder is not part of the ?improved
portion of the highway designed for vehicular travel,? so plaintiff?s claim falls outside the
highway exception to governmental immunity. Id. However, Supreme Court precedent1

1 We note that this Court has previously rejected defendant?s argument in Grimes v Dep?t of
(continued?)

-2-
indicates that in cases such as this one, a highway?s shoulder is considered part of the improved
portion of the highway designed for vehicular travel. Gregg v Dep?t of State Hwys, 435 Mich
307, 311-317; 458 NW2d 619 (1990). Defendant argues that Gregg is inconsistent with the
narrow interpretation given the statute in Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 183;
615 NW2d 702 (2000). While we agree that Gregg appears to conflict with the ?roadbed?
restriction in Nawrocki, ?it is the Supreme Court?s obligation to overrule or modify case law if it
becomes obsolete, and until this Court takes such action, the Court of Appeals and all lower
courts are bound by that authority.? Boyd v WG Wade Shows, 443 Mich 515, 523; 505 NW2d
544 (1993).
Affirmed.
/s/ Peter D. O?Connell
/s/ Bill Schuette
/s/ Stephen L. Borrello

(?continued)
Transportation, unpublished opinion per curiam of the Court of Appeals, issued December 16,
2004 (Docket No. 249558). An application for leave to appeal is pending before the Supreme
Court in Grimes.